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Wednesday, March 20, 2013

Back in 2007, when he was running for president, Barack Obama
criticized George W. Bush's expansive vision of executive power,
saying, "I reject the view that the president may do whatever
he deems necessary to protect national security." The day after
taking office in 2009, Obama
declared that "my Administration is committed to creating an
unprecedented level of openness in Government."
Those two positions went together, because secrecy requires
power and power thrives in secrecy, as Obama himself has been
demonstrating for the last four years. Three recent cases
illustrate how breaking his promise of "the most transparent
administration in history" has helped Obama break his promise not
to use national security as an excuse to violate civil
liberties.
After 9/11, Congress loosened restrictions on national security
letters (NSLs), a kind of administrative subpoena, first authorized
in 1986, that the FBI uses to demand information from phone
companies, Internet service providers, and financial institutions.
According to the Justice Department's inspector general, NSL
"requests" skyrocketed from a
total of 8,500 between 1986 and 2000 to more than 56,000 in 2004
alone.
The Obama administration has made liberal use of NSLs, which in
2010 allowed the FBI to peruse information about 14,212 American
citizens and permanent residents—a
new record—without bothering to get clearance from a judge. If
you were one of those people, the odds are that you will never
know, because NSLs are almost always accompanied by instructions
that prohibit recipients from discussing them.
Last week a federal judge
ruled that such gag orders, under which companies are not even
allowed to confirm that they have received an NSL, violate the
First Amendment. "The FBI has been given the unilateral power to
determine, on a case-by-case basis, whether to allow NSL recipients
to speak about the NSLs," U.S. District Judge Susan Illston
wrote. "As a result, the recipients are prevented from speaking
about their receipt of NSLs and from disclosing, as part of the
public debate on the appropriate use of NSLs or other intelligence
devices, their own experiences."
Just as Americans do not know when the government uses secret
subpoenas to look at their telephone, Internet, and financial
records, they do not know when the government secretly listens to
their conversations or reads their email exchanges with people in
other countries. Thanks to legislation
that Obama supported as a senator, the government can conduct such
surveillance without a specific warrant as long as its official
target is located outside the United States and the collection of
foreign intelligence is "a significant purpose" of the
snooping.
Do such loose rules pass muster under the Fourth Amendment?
Since it's hard to prove you have been subjected to secret
surveillance, we are unlikely to get an answer from the courts.
Last month the Supreme Court, in response to a challenge by
lawyers, journalists, and human rights activists who worry that the
privacy of their international communications has been compromised,
said they lacked standing to sue because "they have no actual
knowledge of the Government's…targeting practices."
Secrecy frustrates challenges to counterterrorism tactics even
in the case of Obama's most startling claim
to executive power: the authority to kill people he identifies as
members or allies of Al Qaeda. In January a federal judge
ruled that the Freedom of Information Act does not require
Obama to disclose the Justice Department memos that explain the
legal rationale for this license to kill.
U.S. District Judge Colleen McMahon expressed frustration with
this result,
saying, "I can find no way around the thicket of laws and
precedents that effectively allow the Executive Branch of our
Government to proclaim as perfectly lawful certain actions that
seem on their face incompatible with our Constitution and laws,
while keeping the reasons for their conclusion a secret." In his
State of the Union address the following month, Obama
promised to make his "targeting" of suspected terrorists "even
more transparent." I'll disbelieve it when I don't see it.